Haley faces questions on transparency

COLUMBIA — Gov. Nikki Haley came into office promising a commitment to transparency, but the deletion of emails by staffers has brought new criticism that the Republican governor has fallen short on that campaign issue.

Haley announced last week her office is working to clarify when it’s OK to hit the delete key. Her staff is coordinating with the state Department of Archives and History to craft a policy on what records can be destroyed, replacing vague guidelines.

The issue arose after open records requests from media outlets revealed Haley’s office routinely deletes emails. Her spokesman Rob Godfrey stresses there is no deletion policy, and the governor is following the law.

But the deletions spurred renewed criticism.

“It means she’s violating her campaign pledge to be transparent,” said John Crangle, executive director of Common Cause, a government ethics watchdog group. “The biggest plank in her platform was that she’d open up state government, and she’s doing just the opposite.”

Former backer Ashley Landess also expressed disappointment.

“When you run on a platform of fully open, transparent government, you better be the most open elected official at the table every time without exception,” Landess, president of the conservative South Carolina Policy Council, told The Post and Courier of Charleston.

Her comment came after Haley ducked questions about the email deletions. TV cameras captured Haley ignoring a Post and Courier reporter after a meeting, as she silently waited for a slow elevator, staring forward.

In her announcement last week, Haley sought to reclaim her key issue, saying the updated policy is among several major steps she’s taken toward transparency. Those include posting video of news conferences online and releasing a schedule of her public events weekly.

Her existing retention policy dates back to at least former Gov. Mark Sanford. Her office believes it’s decades old, passed down from terms pre-dating emails and other electronic correspondence, but the director of the archives agency said its origins are a mystery.

“When we took office, we adopted the same policy that has been used by previous administrations, and we have retained thousands of records and correspondence that will be preserved for archiving at the end of the administration,” Haley said in her announcement. “But we have also found room for strengthening the policy — and, as we always do, when we see something that needs to be fixed, we fix it.”

The office of former Gov. John West, from 1971 to 1975, was the last administration to work with the archives agency on a policy, said agency director Eric Emerson. Unlike the governor’s office, he said, most state agencies have specific retention policies approved by archives.

Emerson called the existing, hand-me-down policy full of contradictions and things that don’t mesh with his agency’s retention guidelines.

“It’s a flawed document,” he said. “I don’t know where it came from.”

The updated policy, to be finished and released in January, will include retaining all emails sent or received by the governor, as well as retaining emails to her chief of staff and others staff considered “of long-term and enduring value,” Godfrey said.

It’s that phrase that currently provides an interpretation hole.

State law bars the disposal of public documents “of long-term and enduring value,” including those sent electronically, and the archives agency defines for agencies in their approved policies what’s considered valuable, Emerson said.

The policy that exists for the governor’s office allows for “routine” correspondence from Haley and her staff to be destroyed, also a term subject to interpretation.

In The Post and Courier’s case, it received emails from Haley and her chief of staff through its public records request to the state’s Medicaid agency. In emails, Haley wrote the whole point of a committee she set up with a federal grant was to figure out how to opt out of the national health care law, not create a state health exchange that was the focus of the study. The emails, which show Haley and aides laying out political and image concerns, were not turned over during an earlier, identical public records request to her office.

But Godfrey said those emails had been deleted as redundant. They were on the message, not policy, and Haley’s opposition to the federal health care law is already well-known and well-documented, he said.

Columbia attorney Jay Bender, an expert on open records laws, said the administration might get a legal pass by arguing staff acted within its discretion in deleting emails.

“Whether they get a political pass is a different question, particularly since it looks like records considered routine and have been destroyed are ones that may prove to be embarrassing to the administration politically,” he said.

Questions about the deletions were previously raised in November by The State newspaper, when its open records request for a copy of all of Haley’s emails since January, except those with the general public, turned up nothing before Oct. 3.

Bill Rogers, director of the South Carolina Press Association, said the deletions destroyed the record of how government operates. Open records laws are designed to give the public access to documents. When business is conducted through electronic means not accessible by the public, “we’re developing a shadow government,” he said.

The archives’ Emerson looks at it from a historian’s perspective. Preserving public documents is important so there will be a researchable record for what officials did and how they reached those decisions, he said.

“When public records are destroyed, that link to the past is severed. My concern is ensuring as many documents of historical value are preserved as possible,” Emerson said. “Without records on policy, decision-making at the highest levels — without primary source documents — we have an incomplete picture of what happened, and that’s a travesty.”

In the case of prior administrations, Sanford’s staff was also told they could delete routine emails — to keep an email as long as needed for reference, then delete, said former Sanford lawyer Brandon Gaskins.

The chief administrator for former Gov. Jim Hodges staff said, with few exceptions, emails sent to and from Hodges and his staff were printed out as paper records and turned over to the archives agency. Valorie Songer said examples of what Hodges’ office considered not worth saving were those that asked about a meeting time, or where colleagues wanted to meet for lunch.

“A significant part of correspondence was transmitted by emails,” she said. “At that time, we were treating it all as paper records.”

Emails aren’t the only thing for which Haley’s faced transparency questions.

A separate public records request from The State newspaper in November revealed Haley uses her state-issued cell phone an average of one call per day. Critics said that means Haley’s conducting state business on private phones. But Godfrey argued that’s not the case — that Haley instead uses staffers’ phones and meets face to face.

During Haley’s successful campaign, opponents called her a hypocrite on her key issue.

Following allegations of an affair with a political blogger and a lobbyist that arose before the primary — which she quickly denied — Haley wouldn’t release her legislative emails, saying she refused to be distracted. She also cited an open records exemption for state legislators.

But after her Democratic opponent released his legislative emails in August 2010, her campaign reversed its stance.

Haley’s campaign allowed media to see 10,000 pages of correspondence from April to July 2010. The allowed viewing on a Friday afternoon showed she appeared to use her legislative account as a spam account, with the bulk of emails being mass blasts from conservative organizations and other statewide campaigns. The campaign declined to release anything from her personal email account.

In June, just before the primary runoff, Haley allowed reporters to see some of her income tax returns, after being challenged by her Republican opponent. Reporters could see additional years’ worth after her Democratic opponent challenged her to release more.

In all three cases, reporters could only view the documents in her office and could not make copies.